1. This is an appeal against the judgment in O. S. 59 of 1947 on the file of the District Judge, Civil Station, directing that the probate of the will Ex. A, shall be granted to the plaintiff as prayed for, with costs, advocate's fee being fixed at Rs. 50. The respondent has filed cross-objections claiming Rs. 410 as advocate's fee.
2. The proceedings were instituted by filing an application under Sections 222 and 276, Succession Act for the grant of a probate in respect of the will Ex. a, executed by deceased Mrs. A.N. Gordon, leaving all her properties to the respondent-plaintiff J.A. Gordon, her son. and appointing him as the sole executor. The appellant-defendant who entered caveat as per law is the only daughter of Mrs. A.E. Gordon. Ac-cording to her, Mrs. A.E. Gordon was 70 years of age at the time of her death on 30-6-1947, and the will said to have come into existence on 22-3-1947 must have been obtained, if genuine, by undue influence of the plaintiff. Mrs. A.E. Gordon was old, infirm and did not have a sound mind, memory or understanding. The defendant does not admit that the will was executed by the deceased. The plaintiff in reply admitted that Mrs. A.E. Gordon was 70 years old, but denied that she was infirm, or of un-sound mind, memory or understanding. As regards the execution of the will, it has to be stated that though the plaintiff has not examined himself, he has examined 6 p. ws. P. W. 5, Mr. P.S. D'Souza, his advocate, says that he prepared the will Ex. A, under the instructions of Mrs. A.E. Gordon, and that it was also executed by her in his and the attestors' presence by affixing her signatures Exs. A2 and A3, P. W. 1, Adiappa, Assistant Superintendent, Bangalore Power and Lighting, under whom the plaintiff has been employed and P. W. 2 D'Gosta, who is an employee under the plaintiff as well as p. w. 3, a pleader, junior of P. W. 5 have a worn that Mrs. A.E. Gordon affixed her signatures A2 and A3 to Ex. A, and that they have also affixed their signatures as attestors. There could hardly be any doubt about Mrs. Gordon having affixed her signatures to the will Ex. A.
3. The more important point for consideration is whether she was in a disposing state of mind when the will was executed and whether it was or was not executed under the undue influence of the plaintiff. As regards her mental state, it is admitted by the plaintiff that she was 70 years old. It is in evidence that one of her sons had been murdered and that her husband had died a short time before the execution of the will in question. It is mainly in respect of her state of mind that a number of D. Ws., including the defendant have been examined. D. W. 1 who was a tenant under Mr. and Mrs. A.E. Gordon, has stated that Mrs. Gordon was not an intelligent woman; during their conversation, he found that she could not understand him and that her mind used to wander and waver about with great fear. D. W. 2, M.V. Castello, says that Mr. Gordon predeceased Mrs. Gordon by about 10 months; her mind was wandering always as if she was dreaming; she could not understand what one said to her, and she was not talking coherently. He found her absolutely a wreck. She had only very elementary education. Her language was childish. She was sad and depressed. D. W. 3 is Mrs. M. Grant, the wife of D W. 1. She states that the health of Mrs. Gordon was very feeble. She was a sort of nervous person, her conversation was very simple and child-like; she was not intelligent. She was wavering in her conversation and was distract-ed. D. W. 4 is Mrs. C.M. Harison, who says that she knew Mr. and Mrs. Gordon from her childhood. According to her, Mrs. Gordon was not interested in anything; while conversing she used to drift away from subject of conversation and she was very weak physically. She says that she has never seen Mrs. Gordon read or write. D. W. 5 is a medical practitioner. He says he knew Mr. and Mrs. Gotdon for 6 or 7 years, as be was their family doctor. According to him Mrs. Gordon was feeble-minded. She was not in a position to understand the question put to her without the assistance of others. Extreme anguish, sorrow and physical weakness lead to mental feebleness. As she was diabetic and aged she could not have recovered from mental feebleness. There is no reason to disbelieve the evidence of these witnesses.
4. The evidence of P. Ws. themselves probabilises that the mental condition of Mrs. Gordon has been correctly depicted by the D. Ws. P. W. 1 has stated that Mra. Gordon was very much distressed on account; of the death of her husband. P. W. 3 says that she was worried about her daughter's affairs. P. W. 6 is a medical practitioner. According to him he had professional dealings with Mr. and Mrs. Gordon, He knows that Mrs. Gordon was attached to all her children, the was not a bold type of woman and she was very quiet and submissive. Her late husband was managing the affairs of her house. The witness does not know anything about the mental or physical condition of Mrs. Gordon about February or March 1946.
5. Taking all the evidence together, it is clear that Mrs. Gordon who was admittedly 70 years old, was very old and infirm. The murder of her son must have given her a shock and added to this her husband had two strokes of paralysis and subsequently died in the later part of 1946, a short time before she executed the will. She was a simple, quiet and submissive woman devoted to all her children. Even according to the doctor examined by the plaintiff, she was a sort of person who could be easily imposed upon by her children like the plaintiff, who had lived with her admittedly at or about the time of the execution of the will. As is clear by the evidence of the family doctor D. W. 5, extreme sorrow and physical weakness had enfeebled her in mind.
6. Considering the state of her mind the point for consideration is whether Mrs. Gordon realised fully what she was doing when she affixed her signatures to Ex. A. It has to be stated that she had a number of children and the entire property has been left only to the plaintiff, who has been appointed as her sole executor. It is in evidence of P. W. 4 that Mrs. Gordon told him that the defendant who was one of her daughters was stranded without a house and that she wanted to give the house to her. It is difficult to understand why she left her other children entirely unprovided for in her will. The only reason given in the will is that the plaintiff had been living with her and was looking after her in her old age. This it has to be stated is not quite accurate. It must be remembered that till about a short time before the execution of the will, her husband was alive and she lived with her husband. The properties belonged to them and if at all, the plaintiff was under their obligation for being under their protection. It cannot, therefore, be said that the only reason given in the will could have induced Mrs. Gordon to her executing the will leaving all the properties only to one of her children. This is particularly so, as, as already stated, it is in evidence that she was devoted to all her children and that she was anxious to give a bouse to the defendant who she said was stranded without a house.
7. The circumstances under which the will came into existence do not show that the will was executed out of her own free will or that she realised the effect of the documents to which she was affixing her signatures. The evidence discloses that she was hardly able to read and write. The fact that she was able to read at all, is denied by the defendant. No one who knows that she was able to read, has been examined in the case. It is the plaintiff who took her to the lawyer to get the will drafted and executed. Inspite of the serious suggestion that the will was executed by an old, infirm, feebleminded woman under his undue influence, the plaintiff has not entered the witness-box to swear to the contrary. The evidence as it stands shows that the contention of the defendant is true.
8. As observed in Ganpatrao v. Vasantrao, A. I. R. (19) 1932 Bom. 588 : (141 I. C. 747).
'If the person propounding the will takes an appreciable benefit under it, that is an element of suspicion, of more or less weight according to the facts of each case, and the burden lies upon him to show that it is the will of the testator and no probate can issue unless the Court is satisfied that the person propounding the will had led sufficient evidence which on a close and careful examination removes that suspicion. The same rule also applies to other circumstances which create suspicion in the mind of the Court.'
9. The observation applies strongly in this case as it is a case in which the entire property has been left to the plaintiff who had lived with the testatrix and was in a position to dominate over the simple, weak, old, infirm, feeble minded woman who, even according to a doctor examined by plaintiff, himself was not a bold type of woman but was very quiet and submissive. It is the plaintiff that takes her to his advocate P. W. 5. The advocate states that she expressed that she wanted to talk to him is private. He took her to his drawing room. She gave him instructions to prepare her will. As the instructions were simple he says he did not make a record of them. If all that she said is that all her property should go to plaintiff it is not clear why she kept plaintiff away and said that she had to give instructions to his advocate in private. The advocate says that he knew that the testatrix had a number of children. He, however, Admits that he did not discuss or make mention of the names of the other children when he received instructions to the effect that all the properties should go to the plaintiff alone. It is not clear why he did not do so. According to the evidence of witness 4 for plaintiff the old woman told him that the defendant, bet daughter, was stranded without a house and she wanted to give her a house. The advocate says that she told him that the defendant had given her considerable trouble by filing a petition to the Administrator-General, Madras in respect of the will of Mr. Gordon. This is not mentioned in the will. On the other hand, it appears from Ex. VI the order passed granting letters of administration to plaintiff in respect of that will, that the defendant's only objection was that the property was under-estimated by plaintiff and that proper security should be taken for granting of the probate. The reason for not giving her any property under the will is not stated in the will. The advocate remembers that Mrs. Gordon spoke to him about her another daughter, who was a widow and a nurse for whom her husband wanted to provide a house. She did not tell him that any bouse was provided for her. The will does not disclose why these daughters of the testatrix have been excluded from inheritance. The advocate fixes up an engagement for the execution of the will seven days after he was instructed to prepare the will. No draft is made and a will is typed 6 days after instructions are given by memory. All the matters discussed are not noted in the will. At the appointed time, plaintiff takes his mother with two friends, of his. They had no discussion with her about the will. The will is not read over to her in their presence. It is given to her for readirg. It is so short that one can read it in 2 or 3 minutes. The junior of the advocate who has also attested the document says that she took 15 minutes to half an hour to read the will. It is strongly disputed that she is able to read and write though she could affix her signature to a document; still no evidence is adduced by plaintiff on the point. The will is not registered though for more than 3 months after the date of the will she was alive. Taken as a whole, there are sufficient circumstances justifying the conclusion that plaintiff's mother was a very old feebleminded woman, hardly capable of comprehending the nature and extent of her property. There are also circumstances to show that at the time of the execution of the will she was not specifically made aware of the existence of other persons who had a claim on her or of their need, The admitted failure of the Advocate to bring to the mind of the testatrix the existence of her children who needed sympathies and the exclusion of the daughters and a widow and children of a son who had been brutally murdered all go to show that the testatrix either did not comprehend fully the scope and extent of the will or the practice of undue influence on her. Like the case of Charles Harwood v. Maria Baker (1840) 3 Moor. P. C. 282 : (13 E. Rule 117), this is a case in which the disposition in the will is a total departure from and contrary to the previous intention of the person who has executed the will. The only difference is that in that case the testator was ill, while in this case the testatrix was hardly able to know what she was speaking or doing owing to extreme old age, disease and affliction.
10. The observations of their Lordships in the above case are pertinent and apposite.
'Their Lordships are of opinion that in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one subject of his regard but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his will, he is excluding from all participation in that property; and that the protection of the law is in no case more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration; and, therefore, the question which their Lordships propose to decide in this case, is not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.
If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though she justice or injustice might cast some light upon the question as to his capacity. '
That was a case in which the following evidence was believed :
'I sat down by his bedside, and in effect said, that I understood that he had sent for me to make his will; be said, 'yes' I then asked him whether he had made up his mind as to what his intentions or wishes were and his reply was, that he had, and intended to give everything to his wife: he said that such was his will to give everything to his wife, not doubting that she would take care of her niece Marian, or some such name he called her by. I suggested (says Mr. Knit) that he had friends, or some friends; but he said he had made up his mind to leave everything to his wife; still, however, saying that he trusted she would take care of her niece. I think I suggested to him, he should say who was to be his executor, and be said 'My wife, she is to be sole executrix.' That was the whole of the instructions I received. Mr. Smith was close by me, or nearly close by me, the whole of the time, and must have heard, as indeed every person must have heard, all that passed.' He adds, 'No person interfered in giving me the instruction; the whole came from Mr. Baker's own lips; it was dons in no haste. There was, I believe, some general conversation beside, between Mr. Smith and Mr. Baker, but to which I paid no attention; and after about ten minutes or a quarter of an hour, having had no occassion to make any minute or such very simple instructions, I asked for paper and writing materials, and sat down at a table In the room close to the bed, and wrote the Will out fair for execution. I needed no further instructions. I had nothing to do but to use words sufficiently comprehensive to apply to property of every description. I made no inquiry as to what Mr. Baker's property consisted of he did not tell me what it did consist of in giving me instructions. He mentioned his wife's Christian name, Mary Ann, I think; and in writing the will out, I had not any occasion to ask him for further instructions for my guidance. After I had written the will completely out, and fair for execution I took it to the bedside and read it carefully, and slowly, and distinctly, to Mr. Baker, and he said it was quite right, or to that effect.'
11. It will be noticed that the testator was able to converse and that he gave specific instructions for the drafting of the will though this was contrary to his previous intention. The will was read over to him and he said that it was quite right and then made his mark. All the same in view of other circumstances, the fact that the testator was able to converse and give instructions did not come in the way of the Court holding
'that the appellant has not made out by his evidence that the paper propounded by him aa the will of Mr. Baker really does contain his last will and testament.'
12. As observed in Earl of Sefton v. Hop-wood, (1858-67) 1 F & F 578, 579 : (176 R.R. 860):
'It is not sufficient in order to make a will that a man should be able to maintain an ordinary conversation and to answer familiar and easy questions. He must have more mind than suffices for that. He must have what the old lawyers called a 'disposing mind'; he must be able to dispose of his property with understanding and reason. That does not mean that he should make what other people may think a sensible will, or a reasonable will, or a kind will .....But he must be able to understand his position? he must be able to appreciate his property, to form a judgment with respect to the parties whom he chose to benefit by it after death; and if he has capacity for that it suffices.'
As observed in Converse v. Converse, 21 Ver 168:
'In order to execute a valid will, one must have sufficient active memory to recall his family and his property and to form a rational judgment in regard to the deserts of the one, and the disposition of the other with reference to such deserts.'
13. Considering all the circumstances of the case, we are of opinion that while the will has been signed by plaintiff's mother it can be said that she had a sound disposing state of mind or that it came to existence without the undue influence of plaintiff who alone got all the property and this in spite of her previous intention of providing for her more unfortunate daughter. The evidence referred to already makes it clear that in addition to extreme old age the murder of her son, her own illness and the death of her husband had made her incapable of any rational judgment. She was incapable of
'a reflection upon the claims of the several persons who by nature or through other circumstances may be supposed to have claims on the testator's bounty and the power of considering these several claims and determining in what proportion the property should be divided amongst the claimants,'
which are required for a sound disposing state of mind as observed by Hannen J. in Burdett v. Thompson, (1873) 3 P. & D. 72.
14. The plaintiff has no doubt proved that his mother affixed her signature to EX. A, but it was prepared without a draft 6 days after she is stated to have given instructions. None of the attestors knew the contents of the will. It was not read out to her. The attestors were strangers to her. They had no conversation with her about the will. It is in evidence that her mind was enfeebled by age, illeneas, shock of the murder of her son and death of her husband. The plaintiff has not oared to examine himself in spite of the fact that it is disputed that his mother was able to read the will or that she was in a sound disposing state of mind and in spite of the fact that it is urged that the will is the result of his undue infidence. The evidence adduced by him is not sufficient to convince the Court that she had a sound disposing state of mind. On the other hand, the evidence justifies an inference that plaintiff's mother was not in a sound disposing state of mind and that the will is the result of undue influence of plaintiff. As observed by Baron Parke in William Baker v. James Batt, (1838) 2 Moor P. C. 317 at pp. 319. 320 (12 E. R. 1026):
'In a Court of probate, where the onus prabandi mostly undoubtedly lies upon the party propounding the will, if the conscience of the Judge, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied, that the paper in question does contain the last will and testament of the deceased, it is bound to pronounce its opinion that the instrument is not entitled to probate. And it may frequently happen that this may be the result of an enquiry in oases of doubtful competence in particular, without the imputation of wilful perjury on either side; or it may be, the Judge may not be satisfied on which side the perjury is committed, or whether it certainly exists.'
15. The result is that the appeal is allowed with caste, Advocate's fee Rs. 25. The judgment of the lower Court granting probate is set aside. The cross objections are dismissed without coats. The suit is dismissed with costs. Advocate's fee Rs. 50.